The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-11-22
Supreme Court OF the Hawaiian Isl
andS--In Admiralty.
Sol EPHRAIN ". BARK FOREST
QUEEN.
EEE0EE CHIEF JUSTICE JUnR
0pspion cg re Casrt.

[ NM nCA> u kAkN AultTACetu uStHh 'ENC-
( est Queen the sum of six hundred
and thirty-two dollars, the value Of
forty-two hogs alleged to have died
on voyage from san Francisco to
Honolulu, by reason Of the careless
ness and negligence Of the persons
in charge of the said veSSelin ''Stow-
ing them and in excepting them
( slowed during the voyage"
The bin Of lading was signed in
san Francisco, Californis, on the
sixth Of November, 1856. by the
I agents of the vessel.
1t shows that three hundred and
niRety-nine hogs alive were ship
( ped in good order and condition in
the bark Forest Queen, Winding
I Master, by the san Francisco Pack
ing and Provision Company, TO Sol
I Ephraim or his assigns. The bill OF
iading Is in the ordinary form, bat
I has this stipulation written across its
face: Freight payable dead or
/ alive. on deck at owners risk,
which was accepted by the eonsignor.
1t is the law in England, by stat
ute, and in the United States, by
repeated decisions of the highest
! Courts that the carrier cannot stipu-
late for exemption from responsible
/ ity when such exemption is not just
and reasonable" and in the United
States Supreme Court it is held that
an exemption from responsibility for
the negligence Of the carrier and his
servants is not just and reasonable:
> Waite'S Action and Def. p. Is, Ct
seq. R. r. Co. W. Lockwood. Il
Wall, ST..
This law Is not disputed and I do
not hesitate TO adopt it in this case,
% far a it i applicable.
11But the general rules which
make the common carrier response
Die for the safe carriage and delivery
Of property intrusted to his care, IN
less he i prevented by the act Of
God. or Of the public enemy, Is not
applied in its full extent to the car
rage Of live freight In the trans
pOrtation Of such freight, in the alb
sence Of. negligence, the carrier Is
relieved from responsibility for such
injuries aS occur in consequence of
the ritGLity Of the freight.
This qualification Of the general
rule i in principle only an applica-
ton TO live freight of the familiar
rule which relieves the carrier from
responsibility where ehattelS perish
by natural decay, or. the inherent
defects Of merchandise destroy its
value. Animals may injure or deS-
troy themselves or each other, or
they may die from fright or Starva-
ton, because they refuse 10 eat, or
they mSy die from heat Of cold. In
all such cases the carrier Is relieved
from responsibility, if he can show
that he has provided al suitable
means Of transportation, and eNer-
cised that degree of care which the
nature Of the property requires
, Wales Action and Defeuces. pp.
81 and 3, and numerous cases there
cited.
1t Is urged on the part Of the libel
Idnts that the f0rty-tw0 hogs died
from aSphyxia. that i, they were
Sufocated for want Of & sufficient
supply Of fresh air. The pens in
which they were placed were built
on the deck of the vessel at the ships
expense. and under the direction Of
the owner Of the vessel. They were
closed at the sides with boards and
fenCe-pgsts, and had boards laid over
the top. Along the middle Of the
covering Of the pens were piled some
Of the feed for the hogs, sacks Of po-
tatOeS and some other merchandise
A beard OF two at each side Of the
empowering was loose and was taken
mp when IT was necessary to feed the
hogs. and this space was left open
some Of the time for ventilation,
but the boards were put back at
night for the seaueu 10. walk over
while engaged in ships duty.
I find that the hogs had sufficient
room for their Eccommsdati1n IN the
vessel There Is no doubt that In
cold weather, OK when there was st
strong breeze blowing the h0gs
would not suffer from undue heat OF
insufficient ventilation But in rum
ming from san Francisco 10 H0uO-
IuLu. vessels pass through great
T---
vorsllIe To hsg- OF leaving san Fran
cisco would ugt be favorable 90 their
comfort when in the tropics espe-
cillIy IN calm weather. To be boxed
up iii d close pen. while proper IN
cold weather. would be dangerous 10
the health If these animals IN hot
weather, for fat hogs are especially
susceptible TO heat
There + good deal Of evidence